Legislative changes implementing mediation as a means of resolving industrial disputes will help business to save on costs and time lost. By Jeff Stewien
Little attention has been paid to intended changes to the role of the Australian Industrial Relations Commission and the legislative recognition of mediation in disputes in amendments to the Workplace Relations Act proposed by the Minister for Workplace Relations and Small Business, Peter Reith.
Mediation has slowly gained acceptance in workplace relations over the past decade as people have sought a quicker, cheaper and more commonsense approach.
The Kennett Government in Victoria, prior to the transfer of powers to the Federal Government, extensively promoted mediation as a means of dispute resolution. The current Federal Government reshaped the federal workplace relations system in an attempt to achieve a more flexible system. Some employers and employees have taken advantage of the new flexibility, and their agreements have included mediation in dispute-resolution processes.
The Government also asked Charlie Bell, managing director of McDonald’s, to head a taskforce to look into small-business deregulation. Bell’s report states: “The Australian Industrial Relations Commission is seen as process-driven and not user-friendly. Accessible forums and simple transparent process are needed.”
It was also the view of small business that commission hearings are held at unsuitable times and locations, its proceedings and documentation are too formal, and legal representation is essential for participating in the process.
It seems that the Federal Government has responded and is looking to implement change.
It is proposed that the compulsory conciliation role of the commission should be limited to disputes relating to allowable matters where the commission has arbitrational powers. The opportunity for it to undertake conciliation in other areas will be available but only where the parties volunteer. The commission will charge for voluntary conciliation on a fee-for-service basis.
The proposal also means to give legislative recognition to the provision of mediation in industrial disputes. Private providers would supply the services. The discussion paper suggests that mediators be accredited through an agency that will then publish the list of accredited parties and actively promote the use of mediation.
Some members of the legal profession are hopeful that workplace mediation will become their exclusive domain. This must not occur: the current involvement of lay people in workplace relations has been a factor in maintaining lower costs. It is also relevant that most large law firms have an inclination to represent employers or employees, rarely both. In such circumstances, it might be difficult to view as impartial a mediator from such a firm. Although current legal mediators are impartial, a monopoly of law firms in this area could create a perception that mediation was a legal process.
Mediation brings considerable benefits to parties negotiating or in dispute. It is a voluntary process; the parties can withdraw at any time and are not compelled to accept an imposed resolution. The commission, however, under the act, is empowered to prevent and settle disputes, preferably by conciliation, but if not, by compulsory arbitration. In these circumstances either party can get a decision with which they are not happy, but with which they must comply.
Mediation is a quicker process than proceeding to a tribunal or court. Commission and court proceedings can take weeks or months. It is also cost effective. The parties share the moderate cost of the mediator, and they may even represent themselves. Even using representation, the reduction in time saves money.
Mediation is user friendly. It is not a formal proceeding, and it uses plain language free of legal jargon likely to confuse the parties. Parties are more able to talk openly under its confidential, without-prejudice procedures. It is non-adversarial in its processes. It frequently allows each party to gain a better understanding of the other’s problems than can be achieved in an adversarial forum.
Parties are more likely to have a greater commitment to making the resolution work, as they have had input to, and have agreed on, the result. The mediation and the result are private and confidential – sensitive matters do not become public – so neither party gets negative publicity.
Private mediators are able to be flexible in their availability and will generally attend at times and locations suitable to the parties. The commission has some difficulty in this area.
Best of all, mediation works. About 75% of parties who go into voluntary mediation reach a solution.
How not to
How not to be honest
In the former republics of the Soviet Union, fraud is a national obsession. In one case, a former Ukrainian politician was arrested on the border with the equivalent of tens of millions of US dollars in his car. But this pales into insignificance against the alleged scam by Russian mobsters and the Bank of New York, involving $US10 billion. So far, authorities are saying that they have not produced any evidence of illegal money-laundering. But if there is any truth to the allegations it gives an entirely new meaning to the phrase “global capital flows”.
How Not To Launch a New Model
The prize for this category has to go to the Edsel, the ill-fated Ford car released in 1957. In an impressive bid for market penetration, more than half the cars were highly defective. Especially fortunate customers might experience doors that could not be closed, bonnets and boots that could not be opened, horns that stuck, batteries that went flat, falling hub-caps, peeling paint, brakes that failed, and push buttons that could under no circumstances be pushed.
Ever sensitive to the subtle shifts of their market, Ford succeeded in timing the release of the Edsel, one of the largest and most lavish cars ever built, with the moment that consumers decided they wanted to buy economy cars. Time magazine chimed in enthusiastically: “It was a classic case of the wrong car for the wrong market at the wrong time.”
After such a dramatic opening, it was hard to see how the car could become any less popular. But here Ford displayed its true marketing genius. The popularity continued to decline. One commentator likened the popularity graph to a downward ski slope. He added that, as far as he knew, no one had ever stolen an Edsel.
What not to say during a performance review:
“You won’t get an argument from me on that – unless you want one.”
When an employee complains: “Things are not fair down there.”
During a farewell lunch for a downsized employee: “We should do this more often.”
During a test for banned substances: “I said no to drugs, but they didn’t listen.”
How Not To Change Your Ways
A secretary in a small company was frustrated at being confined to pedestrian tasks such as photocopying and making beverages. The boss called her into the office and told her she had a bad attitude. “You never say hello and you’re constantly surly.” Realising that the boss had a point, our secretary decided to work on her manner. She read self-help books, tried to change her view of work and generally became more positive.
Two weeks later, she was called into the office again. She was congratulated for her improved attitude.
“Unfortunately, we didn’t expect it, so we have already hired a replacement. But keep up the good work and stay optimistic.”
How Not To Save On Costs
The Bramber Parish Council decided to go without street lighting for three days to save on costs. A brilliant initiative, the treasurer was proud to report that electricity to the value of 11.59 had been saved. However, after an 18.48 bill for turning the electricity off and a 12 reconnection fee, the overall cost saving came to minus 18.89.
How Not To Use Consultants
Author Martin Ashford, in his book Con Tricks, describes how calling in a con (consultant) can be a cover for inaction. The best way to achieve this estimable end is “The Study”. The bigger the study, says Ashford, the longer it takes to complete and the more scope to avoid making any hard decisions.
It goes like this: “After all, we don’t want to change anything now, only to find that the consultants recommend something different. With a bit of luck the cons will file a report two inches thick, and then another six months can decently elapse while everyone reads it and tries to work out what it all means. Then we’ll have to get a working party together to decide how we’re going to implement it. A summary paper will have to go before the board, and they won’t be able to look at it until after the end of the financial year. And by that time the report will be so out of date we’ll have to get some more consultants to come and review the conclusions of the first.”
Ashford says the beauty is that the consultancy process not only can take years, it also gives the impression that the manager is engaged on an important project.
How Not To Trust
A computer system crashed and an employee lost some files. The employee told his boss he would have to work late to get the data back and would need a key. The boss gave him a key with one catch: the employee had to leave the building at the usual time and cruise around the block in his car until it was safe to return, thus lending renewed vigor to the phrase “only the paranoid survive”.